§383-7 - Excluded service.

§383-7 Excluded service. (a) "Employment"
shall not include:

(1) Agricultural labor as defined in section 383-9 if
it is performed by an individual who is employed by an employing unit:

(A) That, during each calendar quarter in both
the current and the preceding calendar years, paid less than $20,000 in cash
remuneration to individuals employed in agricultural labor, including labor
performed by an alien referred to in subparagraph (C); and

(B) That had, in each of the current and the
preceding calendar years:

(i) No more than nineteen calendar weeks,
whether consecutive or not, in which agricultural labor was performed by its
employees, including labor performed by an alien referred to in subparagraph
(C); or

(ii) No more than nine individuals in its employ
performing agricultural labor in any one calendar week, whether or not the same
individuals performed the labor in each week, including labor performed by an
alien referred to in subparagraph (C); or

(C) If such agricultural labor is performed by
an individual who is an alien admitted to the United States to perform
agricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of the
Immigration and Nationality Act;

(2) Domestic service in a private home, local college
club, or local chapter of a college fraternity or sorority as set forth in
section 3306(c)(2) of the Internal Revenue Code of 1986, as amended;

(3) Service not in the course of the employing unit's
trade or business performed in any calendar quarter by an individual, unless
the cash remuneration paid for the service is $50 or more and the service is
performed by an individual who is regularly employed by the employing unit to
perform the service. For the purposes of this paragraph, an individual shall
be deemed to be regularly employed to perform service not in the course of an
employing unit's trade or business during a calendar quarter if:

(A) On each of some twenty-four days during
the quarter the individual performs the service for some portion of the day; or

(B) The individual was regularly employed as
determined under subparagraph (A) by the employing unit in the performance of
the service during the preceding calendar quarter;

(4) (A) Service performed on
or in connection with a vessel not an American vessel, if the individual
performing the service is employed on and in connection with the vessel when
outside the United States;

(B) Service performed by an individual in (or
as an officer or member of the crew of a vessel while it is engaged in) the
catching, taking, harvesting, cultivating, or farming of any kind of fish,
shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and
vegetable life, including service performed as an ordinary incident thereto,
except:

(i) The service performed in connection with a
vessel of more than ten net tons (determined in the manner provided for
determining the register tonnage of merchant vessels under the laws of the
United States);

(ii) The service performed in connection with a
vessel of ten net tons or less (determined in the manner provided for
determining the register tonnage of merchant vessels under the laws of the
United States) by an individual who is employed by an employing unit which had
in its employ one or more individuals performing the service for some portion
of a day in each of twenty calendar weeks all occurring, whether consecutive or
not, in either the current or the preceding calendar year; and

(iii) Service performed in connection with the
catching or taking of salmon or halibut for commercial purposes;

(5) Service performed by an individual in the employ
of the individual's son, daughter, or spouse, and service performed by a child
under the age of twenty-one in the employ of the child's father or mother;

(6) Service performed in the employ of the United
States government or an instrumentality of the United States exempt under the
Constitution of the United States from the contributions imposed by this
chapter, except that to the extent that the Congress of the United States permits
states to require any instrumentalities of the United States to make payments
into an unemployment fund under a state unemployment compensation law, all of
the provisions of this chapter shall apply to those instrumentalities, and to
services performed for those instrumentalities, in the same manner, to the same
extent, and on the same terms as to all other employers, employing units,
individuals, and services; provided that if this State is not certified for any
year by the Secretary of Labor under section 3304(c) of the federal Internal
Revenue Code, the payments required of those instrumentalities with respect to
that year shall be refunded by the department of labor and industrial relations
from the fund in the same manner and within the same period as is provided in
section 383-76 with respect to contributions erroneously collected;

(7) Service performed in the employ of any other
state, or any political subdivision thereof, or any instrumentality of any one
or more of the foregoing which is wholly owned by one or more states or
political subdivisions; and any service performed in the employ of any
instrumentality of one or more other states or their political subdivisions to
the extent that the instrumentality is, with respect to the service, exempt
from the tax imposed by section 3301 of the Internal Revenue Code of 1986, as
amended;

(8) Service with respect to which unemployment
compensation is payable under an unemployment system established by an act of
Congress;

(9) (A) Service performed in
any calendar quarter in the employ of any organization exempt from income tax
under section 501(a) of the federal Internal Revenue Code (other than an
organization described in section 401(a) or under section 521 of the Internal
Revenue Code), if:

(i) The remuneration for the service is less
than $50; or

(ii) The service is performed by a fully
ordained, commissioned, or licensed minister of a church in the exercise of the
minister's ministry or by a member of a religious order in the exercise of duties
required by the order;

(B) Service performed in the employ of a
school, college, or university, if the service is performed by a student who is
enrolled and is regularly attending classes at the school, college, or
university; or

(C) Service performed by an individual who is
enrolled at a nonprofit or public educational institution which normally
maintains a regular faculty and curriculum and normally has a regularly
organized body of students in attendance at the place where its educational
activities are carried on as a student in a full-time program, taken for credit
at the institution, which combines academic instruction with work experience,
if the service is an integral part of such program, and the institution has so
certified to the employer, except that this subparagraph shall not apply to
service performed in a program established for or on behalf of an employer or
group of employers;

(10) Service performed in the employ of a foreign
government, including service as a consular or other officer or employee of a
nondiplomatic representative;

(11) Service performed in the employ of an
instrumentality wholly owned by a foreign government:

(A) If the service is of a character similar
to that performed in foreign countries by employees of the United States
government or of an instrumentality thereof; and

(B) If the United States Secretary of State
has certified or certifies to the United States Secretary of the Treasury that
the foreign government, with respect to whose instrumentality exemption is
claimed, grants an equivalent exemption with respect to similar service
performed in the foreign country by employees of the United States government
and of instrumentalities thereof;

(12) Service performed as a student nurse in the
employ of a hospital or a nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training school
chartered or approved pursuant to state law; and service performed as an intern
in the employ of a hospital by an individual who has completed a four-year
course in a medical school chartered or approved pursuant to state law;

(13) Service performed by an individual for an
employing unit as an insurance producer, if all service performed by the
individual for the employing unit is performed for remuneration solely by way
of commission;

(14) Service performed by an individual under the age
of eighteen in the delivery or distribution of newspapers or shopping news, not
including delivery or distribution to any point for subsequent delivery or
distribution;

(15) Service covered by an arrangement between the
department and the agency charged with the administration of any other state or
federal unemployment compensation law pursuant to which all services performed
by an individual for an employing unit during the period covered by the
employing unit's duly approved election, are deemed to be performed entirely
within the agency's state;

(16) Service performed by an individual who, pursuant
to the Federal Economic Opportunity Act of 1964, is not subject to the federal
laws relating to unemployment compensation;

(17) Service performed by an individual for an
employing unit as a real estate salesperson, if all service performed by the
individual for the employing unit is performed for remuneration solely by way
of commission;

(18) Service performed by a registered sales
representative for a registered travel agency, when the service performed by
the individual for the travel agent is performed for remuneration by way of
commission;

(19) Service performed by a vacuum cleaner salesperson
for an employing unit, if all services performed by the individual for the
employing unit are performed for remuneration solely by way of commission;

(20) Service performed for a family-owned private corporation
organized for profit that employs only members of the family who each own at
least fifty per cent of the shares issued by the corporation; provided that:

(A) The private corporation elects to be
excluded from coverage under this chapter;

(B) The election for exclusion shall apply to
all shareholders and under the same circumstances;

(D) The exclusion shall be irrevocable for
five years;

(E) The family-owned private corporation
presents to the department proof that it has paid federal unemployment
insurance taxes as required by federal law; and

(F) The election to be excluded from coverage
shall be effective the first day of the calendar quarter in which the
application and all substantiating documents requested by the department are
filed with the department;

(21) Service performed by a direct seller as defined
in section 3508 of the Internal Revenue Code of 1986;

(22) Service performed by an election official or
election worker as defined in section 3309(b)(3)(F) of the Internal Revenue
Code of 1986, as amended;

(23) Service performed by an inmate or any person
committed to a penal institution[; and]

(24) Domestic in-home and community-based services for
persons with developmental disabilities and mental retardation under the
medicaid home and community‑based services program pursuant to title 42
Code of Federal Regulations sections 440.180 and 441.300, and title 42 Code of
Federal Regulations, part 434, subpart A, as amended, and identified as chore,
personal assistance and habilitation, residential habilitation, supported
employment, respite, and skilled nursing services, as the terms are defined and
amended from time to time by the department of human services, performed by an
individual whose services are contracted by a recipient of social service
payments and who voluntarily agrees in writing to be an independent contractor
of the recipient of social service payments unless the individual is an
employee and not an independent contractor of the recipient of social service
payments under the Federal Unemployment Tax Act.

(b) None of the exclusions in subsection (a)
shall apply to any service with respect to which a tax is required to be paid
under any federal law imposing a tax against which credit may be taken for
contributions required to be paid into a state unemployment fund or which as a
condition for full tax credit against the tax imposed by the federal
Unemployment Tax Act is required to be covered under this chapter. [L 1939, c
219, §2(k)(6); am L 1941, c 304, §1, pt of subs 8; RL 1945, §4208; am L 1945, c
19, §1; am L 1947, c 75, §1; am L 1951, c 191, §1(1), (2) and c 195, §1(2),
(3); am L 1953, c 41, §1(2); RL 1955, §93-7; am L 1959, c 11, §1(b), c 222,
§1(2), and c 232, §4; am L Sp 1959 2d, c 1, §27; am L 1961, c 81, §1 and c 141,
§1; am L 1965, c 61, §1; am L 1967, c 51, §1; HRS §383-7; am L 1969, c 73, §§1,
2; am L 1971, c 187, §2 and c 213, §2; am L 1973, c 120, §1; am L 1974, c 156,
§1; am L 1977, c 148, §2; am L 1982, c 192, §1 and c 194, §2; gen ch 1985; am L
1989, c 217, §2; am L 1990, c 284, §1; am L 1994, c 112, §2; am L 1996, c 223,
§2 and c 306, §1; am L 1998, c 34, §1; am L 2003, c 212, §4; am L 2007, c 70, §3,
c 97, §2, and c 259, §6]

Revision Note

Subsection (a)(24) redesignated pursuant to §23G-15(1).

Law Journals and Reviews

Relief for Manufacturers and Wholesalers: A Proposal to
Exclude Commissions Paid to Part-Time Sales Representatives from Hawaii's Unemployment Tax. II HBJ No. 13, at pg. 35.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

Case Notes

Under paragraph (9)(B), eligibility of a student-employee for
unemployment insurance benefits rests on whether the "primary relationship"
the student occupies with respect to the school, college, or university
involved is that of student or employee; under circumstances of the case, the
primary relationship claimant had to the university while claimant performed
services during the summer was that of a student of the university. 105 H.
485, 100 P.3d 55.